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Now out in paperback: The United States and Torture - A "gripping, interdisciplinary work" - see NYU Press."the best collection of essays on the topic" (Erwin Chemerinksy, Dean, UC Irvine Law School)"an extraordinarily important book" (John W. Dean, Nixon White House counsel)

Tuesday, June 26, 2012

The Bush administration detained and tortured suspected militants; the
Obama administration assassinates them. Both practices not only visit
more hatred upon the United States; they are also illegal. Our laws
and treaties prohibit torture. The Constitution forbids the government
from depriving any person of life without due process of law; that is,
arrest and fair trial. Yet President Obama has approved the killing of
people, many of whom were not even identified before the kill order
was given.

Jo Becker and Scott Shane reported in the New York Times that Obama
maintains a “kill list.” After consulting with his counterterrorism
adviser John O. Brennan, Obama personally makes the decision to have
individuals executed. Brennan was closely identified with torture,
secret prisons, and extraordinary rendition during the Bush
administration. The Times story, based on interviews with three dozen
current and former Obama advisers, reports that “Mr. Obama has avoided
the complications of detention by deciding, in effect, to take no
prisoners alive. While scores of suspects have been killed under Mr.
Obama, only one has been taken into U.S. custody” because he doesn’t
want to add new prisoners to Guantanamo.

The leak of the kill list angered Republicans, evidently because they
believe it demonstrates Obama’s “strength” in foreign policy. Some
progressives who do not fully understand the profound illegality of
drone attacks find them preferable to the United States’ all out
invasions of more countries. We all need to understand that the
unlawful precedent the United States is setting with its use of killer
drones not only undermines the rule of law; it also will prevent the
United States from reasonably objecting when other countries that
obtain drone technology develop “kill lists” of persons those
countries believe represent threats to them.

On June 15, for the first time, Obama publicly acknowledged that his
administration is engaging in “direct action” in Yemen and Somalia.
Although the United States is not at war with either country, George
W. Bush’s “War on Terror” has morphed into Obama’s “War on Al Qaeda.”
Obama’s “war” has been used as an excuse to assassinate anyone
anywhere in the world whenever the President gives the order.

But “there is not a distinct entity called Al Qaeda that provides a
sound basis for defining and delimiting an authorized use of force,”
according to Paul P. Pillar, deputy director of the CIA’s
Counterterrorist Center from 1997 to 1999. The United States is not at
war with Yemen and Somalia. Even if Obama identifies certain people
living in Yemen or Somalia as members of Al-Qaeda who are desirous of
committing acts of terror against the people of the United States,
there is no basis in law for our government to declare war on
individuals it considers a threat. The United States has legal means
to indict and extradite, both under U.S. and international law.

Since 2004, some 300 drone strikes have been launched in Pakistan.
Twenty percent of the resulting deaths are believed to have been
civilians. The Pakistan Human Rights Commission says U.S. drone
strikes were responsible for at least 957 deaths in Pakistan in 2010.

In the three and one-half years since Obama took office, between 282
and 585 civilians have been killed, including more than 60 children.
“The CIA’s drone campaign has killed dozens of civilians who had gone
to rescue victims or who were attending funerals,” a new report by the
London-based Bureau of Investigative Journalism found.

But, according to the Times article, Obama has developed a creative
way to count civilian casualties. All military-age men killed in a
drone strike zone are considered to be combatants, “unless there is
explicit intelligence posthumously proving them innocent.” As a
result, Brennan reported last year that not one civilian had been
killed during one year of strikes. An administration official recently
claimed that the number of civilians killed by drone strikes in
Pakistan was in the “single digits.” Three former senior intelligence
officials told the Times that they couldn’t believe the number could
be so low.

Obama, who has been targeting “suspected militants” (called
“personality strikes”) in Pakistan, Yemen and Somalia, even killing
U.S. citizens, has authorized expanded drone attacks - whenever there
are suspicious “patterns of behavior” at sites controlled by a
terrorist group. These are known as “signature strikes.” That means
bombs are being dropped on un-identified people who are in an area
where suspicious activity has taken place. This goes beyond the
illegal practice of “targeted killing.” People are being killed
without even being an identified target.

The administration justifies its use of armed drones with reference to
the Authorization for the Use of Military Force that Congress passed
just days after the September 11 attacks. In the AUMF, Congress
authorized force against groups and countries that had supported the
terrorist strikes. But Congress rejected the Bush administration’s
request for open-ended military authority “to deter and preempt any
future acts of terrorism or aggression against the United States.”
Deterrence and preemption are exactly what Obama is trying to
accomplish by sending robots to kill “suspected militants” or those
who happen to be present in an area where suspicious activity has
taken place.

Moreover, in the National Defense Authorization Act of 2012, Congress
specifically declared, “Nothing in this section is intended to . . .
expand the authority of the President or the scope of the
Authorization for the Use of Military Force [of September 2001].”

Drone attacks also violate well-established principles of
international law. A targeted killing is defined as the “intentional,
premeditated, and deliberate use of lethal force . . . against a
specific individual who is not in the physical custody of the
perpetrator,” according to Philip Alston, former UN Special Rapporteur
on Extrajudicial, Summary, or Arbitrary Executions. Targeted or
political assassinations – sometimes known as extra-judicial
executions – run afoul of the Geneva Conventions, which include
willful killing as a grave breach. Grave breaches of Geneva are
punishable as war crimes under the U.S. War Crimes Act.

Christof Heyns, the current UN Special Rapporteur on Extrajudicial,
Summary, or Arbitrary Executions, expressed grave concern about the
targeted killings, saying they may constitute war crimes. He called on
the Obama administration to explain how its drone strikes comport with
international law, specify the bases for decisions to kill rather than
capture particular individuals, and whether the State in which the
killing takes place has given consent. Heyns further asked for
specification of the procedural safeguards in place, if any, to ensure
in advance of drone killings that they comply with international law.
He also wanted to know what measures the U.S. government takes after
any such killing to ensure that its legal and factual analysis was
accurate and, if not, the remedial measures it would take, including
justice and reparations for victims and their families. Although
Heyns’ predecessor made similar requests, Heyns said the United States
has not provided a satisfactory response.

Heyns also called on the U.S. government to make public the number of
civilians collaterally killed as a result of drone attacks, and the
measures in place to prevent such casualties. Once again, Heyns said
the United States has not satisfactorily responded to a prior query
for such information.

Likewise, UN High Commissioner for Human Rights Navi Pillay recently declared that U.S. drone attacks in Pakistan violate the international
law principles of proportionality and distinction. Proportionality
means that an attack cannot be excessive in relation to the
anticipated military advantage sought. Distinction requires that the
attack be directed only at a legitimate military target.

The United States has ratified the International Covenant on Civil and
Political Rights. The ICCPR states: “Every human being has the
inherent right to life. This right shall be protected by law. No one
shall be arbitrarily deprived of his life.” The Covenant also
guarantees those accused of a crime the right to be presumed innocent
and to a fair trial by an impartial tribunal. Targeted killings
abrogate these rights.

Self defense under Article 51 of the United Nations Charter is a
narrow exception to the Charter’s prohibition of the use of force or
the threat of force to settle international disputes. Countries may
engage in individual or collective self-defense only in the face of an
armed attack. To the extent the United States claims the right to
kill suspected terrorists or their allies before they act, there must
exist "a necessity of self-defence, instant, overwhelming, leaving no
choice of means, and no moment for deliberation,” under the
well-established Caroline Case. Obama’s drone attacks do not meet this
standard.

The United States’ resort to ever increasing targeted killings is a
direct result of the “War on Terror” the Bush administration declared
after 9/11. Bush declared a perpetual war on a tactic and claimed all
Al-Qaeda and Taliban are terrorists who may be preemptively killed as
a form of self defense, rather than being arrested and tried for criminal acts. Although he does not use the phrase “War on Terror,” Obama has continued and even extended this policy. It is the product
of a powerful military industrial complex in the United States which
sees the use of force as the first step to resolving disputes rather
than a last resort, notwithstanding the strictures of the UN Charter.

This practice sets a dangerous precedent. Heyns opined that “any
Government could, under the cover of counter-terrorism imperatives,
decide to target and kill an individual on the territory of any State
if it considers that said individual constitutes a threat.” Heyns also
cited information that indicates “the attacks increasingly fuel
protests among the population.” Heyns said the “lack of transparency”
and “dangerous precedent” that drone attacks represent “remain of
grave concern.”

Drone strikes are also counterproductive. They breed increased
resentment against the United States and lead to the recruitment of
more terrorists. “Drones have replaced Guantanamo as the recruiting
tool of choice for militants,” Becker and Shane wrote in the Times
article. They quoted Faisal Shahzad, who, while pleading guilty to
trying to detonate a bomb in Times Square, told the judge, “When the
drones hit, they don’t see children.” Pakistani ambassador Zamir Akram
told the Geneva Forum last week that the drone attacks are illegal and
violate the sovereignty of Pakistan, “not to mention being
counter-productive.” He added, “thousands of innocent people,
including women and children, have been murdered in these
indiscriminate attacks.”

Becker and Shane noted, “[Obama’s] focus on strikes has made it
impossible to forge, for now, the new relationship with the Muslim
world that he had envisioned. Both Pakistan and Yemen are arguably
less stable and more hostile to the United States than when Mr. Obama
became president. Justly or not, drones have become a provocative
symbol of American power, running roughshod over national sovereignty
and killing innocents.”

Ibrahim Mothana, who wrote an op-ed in the Times titled “How Drones
Help Al Qaeda,” agrees. “Drone strikes are causing more and more
Yemenis to hate America and join radical militants; they are not
driven by ideology but rather by a sense of revenge and despair,”
Mothana observed.

It is time to halt this dangerous and illegal practice.

Jeanne Mirer, a contributor to "The United States and Torture:Interrogation, Incarceration, and Abuse," is an attorney in New YorkCity and president of the International Association of Democratic Lawyers.

Useful Researchclick below

Marjorie Cohn is a former president of the National Lawyers Guild and a professor at Thomas Jefferson School of Law, where she teaches criminal law and procedure, evidence, and international human rights law. She lectures throughout the world on human rights and US foreign policy.